CASE NO. 5485 CRB-1-09-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 9, 2010
RICHARD BROOKS, DECEASED
NENA BROOKS, DEPENDENT WIDOW
ELECTRIC BOAT CORPORATION, et al
ACE USA, et al
W. J. BARNEY CORPORATION
CONNECTICUT INSURANCE GUARANTY ASSOCIATION
C/O GUARANTY FUND MANAGEMENT SERVICES
The claimant was represented by Melissa M. Olson, Esq., Embry & Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340-1409.
The respondents Ebasco and Broadspire were represented by Thomas McKeon, Esq., Bai & Associates, 15 Elm Street, Rocky Hill, CT 06067 who did not submit a brief or appear at oral argument.
The respondents CN Flagg and Liberty Mutual Insurance Group were represented by Marian Yun, Esq., Law Office of Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492.
The respondents ABB Combustion Engineering and CAN Insurance Company were represented by Elizabeth Zaccardi, Esq., Law Offices of Cynthia A. Jaworski, 175 Capital Boulevard, Suite 400, Rocky Hill, CT 06067 who did not submit a brief or appear at oral argument.
The respondents Electric Boat Corporation and ACE USA were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033.
The respondents Benzoline Energy Company and Crum & Forster were represented by Robert Enright, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The respondents W. J. Barney and Connecticut Insurance Guarantee Association were represented by Joseph Passaretti, Esq., Montstream & May, LLP P.O. Box 1087 655 Winding Brook Drive, Glastonbury, CT 06033-6087.
The respondents CN Flagg, Stone & Webster, John P. Bell & Sons, Carrier Corporation and Travelers Indemnity were represented by Jack Clarkson, Esq., Law Offices of Charles Walker, 300 Windsor Street, Hartford, CT 06145-2138 who did not submit a brief or appear at oral argument.
The respondents CN Flagg and Specialty Risk Services were represented by James J. Babek, Esq., on behalf of John W. Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105 who submitted a brief but did not attend oral argument.
The respondents CN Flagg and The Hartford were represented by Lawrence McLoughlin, Esq., The Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
The respondents Bechtel Corporation and Nationwide Insurance were represented by Donna Londregan, Esq., Law office of Donna Londregan, 500 Enterprise Drive, 5th Floor, Rocky Hill, CT 06067 who did not submit a brief or appear at oral argument.
This Petition for Review1 from the July 15, 2009 Finding and Award of the Commissioner acting for the First District was heard February 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The present case involves determining which of the various employers of the decedent Richard Brooks is the “last carrier on the risk” for his death due to cancer, in which asbestos exposure was a substantial factor. The decedent’s spouse, Nena Brooks, sought benefits under § 31-306 C.G.S. for his demise and has been awarded such benefits. The trial commissioner concluded that W. J. Barney, a firm in which the decedent worked in the mid to late 1980’s, was the last responsible party for the purposes of apportionment under § 31-299b C.G.S. The Connecticut Insurance Guaranty Association (“CIGA”) has stepped into the shoes of the defunct carrier for W. J. Barney. CIGA has appealed the trial commissioner’s Finding and Award. They argue that this panel erred in Franklin v. Superior Casting, 5269 CRB-7-07-9 (June 15, 2009) and CIGA cannot be found liable to be the lead carrier in an apportionment case. They also argue that the trial commissioner did not have sufficient evidence to conclude W. J. Barney was the last employer in which the decedent was substantially exposed to asbestos. We are not persuaded by either argument and affirm the Finding and Award.
The trial commissioner found the following facts which are relevant to our consideration of this case. The decedent Richard Brooks testified twice at deposition regarding his employment history, job duties and exposure to asbestos. He testified that he worked at Electric Boat as a welder in 1969 and was exposed to significant amounts of asbestos in that job. From 1969 to 1975 he worked for W. J. Barney and was exposed to significant amounts of asbestos. Following his period working for W. J. Barney he worked for Ebasco (1974 and 1975), Bechtel (1973 and 1974), CN Flagg (1979) and Crouse (1980, 1981 and 1982). At each job he was exposed to asbestos. The claimant returned to work at W. J. Barney in 1988 and was exposed to asbestos at that job. The claimant also worked at Benzoline Energy Company, Connecticut Refining Corp., and the New Haven City Schools. His exposure to asbestos at these jobs was minimal.
The claimant first exhibited manifestation of lung cancer on July 19, 2002. At that point he earned an average weekly wage of $698.57, with a resulting compensation rate of $408.91 weekly. The claimant died on April 28, 2004. Prior to his death the decedent-claimant was examined by Dr. Arthur DeGraff, Jr. Dr. DeGraff opined that the decedent’s exposure to asbestos over his entire employment history was a substantial and significant contributing factor in causing his cancer and resulting death. He further opined the decedent’s asbestos exposure up through the “early 80’s” and “mid-80’s” resulted in the development of his cancer. Dr. Susan Daum performed a records review of the decedent’s medical records on October 20, 2004. She opined that his occupational exposure to asbestos was a substantial and significant contributing factor in the development of his lung cancer and resulting death.
The claimant was married at the time of his death to the claimant Nena Brooks, who was his dependent surviving spouse. Mrs. Brooks was receiving benefits under the Longshore and Harbor Workers’ Compensation Act as a result of the decedent’s exposure to asbestos, with resulting lung cancer and death from this exposure.
Based on these facts the trial commissioner concluded the claimant was a credible witness as to the worksites where he was exposed to asbestos. He found Dr. DeGraff and Dr. Daum credible and persuasive as to the causation of the claimant’s cancer. Therefore the trial commissioner concluded the decedent sustained an occupational lung cancer as a result of asbestos exposure, which was diagnosed on July 19, 2002 and caused his demise on April 28, 2004. Based upon those foregoing conclusions, the trial commissioner found that the Respondent W. J. Barney was the responsible party pursuant to § 31-299b C.G.S. The commissioner found the decedent’s asbestos exposure in locations while in the employ of subsequent employers was minimal at best and not injurious or a substantial contributing factor to the decedent’s lung disease.
There were a number of post-decision motions filed in this matter. Three Motions to Correct were filed. The Motion to Correct filed by the insurer Liberty Mutual was granted, the motions filed by the insurer Hartford Insurance Group and by CIGA were denied. CIGA filed a Motion for Articulation seeking the trial commissioner to expound upon six issues. The trial commissioner granted only one articulation. He articulated that while in Finding, ¶ 3 and Conclusion, ¶ D he found the claimant was a credible and persuasive witness, he found the claimant’s testimony as to being exposed to asbestos at any employer subsequent to W. J. Barney in 1988 to be “speculative and de minimis at best.” CIGA has now pursued this appeal.
CIGA’s appeal is based on two distinct issues. First, they argue that as a matter of statute they cannot be the lead carrier responsible for § 31-299b C.G.S., apportionment of a claim for occupational disease or repetitive trauma. The arguments advanced in this appeal are a verbatim recitation of the arguments we rejected in Franklin, supra. As this case is indistinguishable from Franklin we must extend stare decisis to our prior decision. We uphold the trial commissioner on this issue.
The other argument advanced is that the trial commissioner’s determination that W. J. Barney was the last employer in which the claimant/decedent was exposed to a significant amount of asbestos was not supported by the evidence on the record. As CIGA views the record, because the claimant/decedent and the expert witnesses did not offer entirely consistent testimony there is inadequate probative evidence supporting the trial commissioner’s findings and a remand is in order.
The trial commissioner in this matter waded into the arduous task of evaluating the relative contribution of multiple employers over a number of decades to the decedent’s ultimate demise. This constitutes a difficult judgment call. It is unlikely that in matters such as this that a clear-cut point can be readily established where the claimant stopped being exposed to any level of exposure to the harmful agent that contributed to the claimant’s illness. As we pointed out in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) “[t]here are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence.” We have also followed the principle delineated in Daniels v. Alander, 268 Conn. 320 (2004) that “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Id., 330.
We have reviewed the testimony of the two physicians who opined as to the causation of the claimant/decedent’s illness. Dr. DeGraff testified in a April 2, 2004 letter that the claimant’s asbestos exposure “continued until the early 1980’s.” Respondent’s Exhibit 1. Dr. DeGraff also answered affirmatively at a January 12, 2005 deposition that the claimant/decedent was significantly exposed to asbestos “until the mid 1980’s or so.” Deposition Transcript pp. 12-13. Dr. Daum opined in a October 20, 2004 report that the claimant was exposed from time to time to asbestos until he went to work in the 1990’s for Arden Engineering. She opined that asbestos exposure was a significant contributing factor in the claimant’s death. Claimant’s Exhibit D.2
We note that neither physician specifically identified the claimant’s work at W. J. Barney in 1988 as the last substantial exposure to asbestos in the claimant/decedent’s health history. Such evidence supportive of the trial commissioner’s decision could only have been gleaned from the claimant’s testimony.
The claimant/decedent was deposed on August 15, 2003 and April 21, 2004. He testified that when he worked at the Pfizer facility “preparing piping and stuff” he was employed by the W. J. Barney Company. Claimant’s Exhibit E, p. 7. He testified that while working for W. J. Barney “[t]here was predominantly a lot of asbestos air in the yard.” Id., p. 8. The claimant testified he left the employ of W. J. Barney and worked for a variety of other employers in the construction business. The claimant testified that he returned to the employ of W. J. Barney in 1988 and was employed at “[b]asically the same thing we’d done in the past, maintenance type work.” Claimant’s Exhibit F, p. 21. The claimant said he “possibly” was exposed to asbestos in 1988, id., but then described working in tunnels at the facility powerhouse where “we would still be exposed to it working on there.” Id., p. 22. He further testified “whenever I saw an old steam line with gray matter hanging off it all pulverized and powdery, I knew it wasn’t fiberglass, I assumed.” Id. He later stated that he “definitely was” exposed to asbestos while working for W. J. Barney and further stated “[e]very building in that yard had asbestos in it.” Id., P. 24.
Counsel for the claimant points us to the recent Supreme Court decision in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) as governing the fact pattern herein. In Marandino the claimant testified as to the facts concerning a subsequent injury and her treating physician opined that based on those facts that subsequent injury was a compensable sequelae of the initial compensable injury. The trial commissioner and this panel were satisfied this constituted sufficient evidence to support an award, but the Appellate Court reversed this panel on that issue. The Supreme Court, however, reinstated the award. They concluded the treating physician’s report met the standard delineated in Struckman v. Burns, 205 Conn. 542 (1987) to constitute competent medical evidence. Id., 592. In addition, the Supreme Court pointed out that medical opinions cannot be considered in a vacuum, but must be considered in the context of the factual circumstances surrounding the claimant’s injury.
Moreover, as we have explained previously herein, it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment. Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 151. Id., at 594 (Emphasis in original).
In the present case the claimant testified that his work at W. J. Barney in 1988 was substantially similar to the work he performed for that firm in the 1970’s. The claimant’s testimony also indicated his work at that time for W. J. Barney exposed him to asbestos in the same manner as the exposure he faced during his various employments in the period up to the early and mid 1980’s. Dr. DeGraff specifically testified that the claimant’s exposure to asbestos in the workplace in the early to mid 1980’s was a substantial factor in his illness.3 Dr. Daum concurred with this opinion and as CIGA points out, would extend the period of liability even beyond the claimant’s employment with W. J. Barney.
On appeal, this panel must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). We are satisfied the evidence on the record establishes that as of 1988 the claimant/decedent was still exposed to a substantial level of workplace asbestos exposure and that as the medical experts concur as to causation, W. J. Barney is a responsible party in this matter.
CIGA argues that even if W. J. Barney was a responsible party as of 1988 that the trial commissioner was bound by Dr. Daum’s opinion to find later employers responsible as the § 31-299b C.G.S. employer. We disagree. The standard for determining whether a claimant’s exposure to an injurious agent makes an employer responsible under the apportionment statute is whether the party was on the risk “at a time of ‘substantial exposure’” Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). In Stevens the party responsible for § 31-299b C.G.S. apportionment argued that a subsequent employer should be found liable. We determined that the trial commissioner reached a determination after weighing the testimony on the record the subsequent asbestos exposure to the decedent was de mininis. “The claimant presented evidence that the decedent was not exposed to any appreciable extent. We may infer the trial commissioner credited this evidence and we cannot second guess a trial commissioner’s determination of the evidence presented before him.” Id.4 We are unable to discern how the trial commissioner’s conclusions herein are inconsistent with the precedent in Stevens.
CIGA finally argues that since this panel ordered a remand in two other cases where a trial commissioner relied on two differing expert opinions, Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) and Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), appeal dismissed, A.C. 29056 (October 18, 2007) that the present matter must also be remanded. Appellant’s Brief, pp. 9-12. CIGA’s recitation of the facts of those cases clearly establishes those cases are factually distinguishable. Neither case involved apportionment or an occupational disease. The opinions in those cases did not differ on a date of last exposure, but on material issues as to whether a claimant was disabled or on the percentage of permanent disability. Neither case involved issues in which the claimant’s testimony could resolve the matter for the trial commissioner. In addition, by granting an articulation of Finding, ¶ 3 and Conclusion, ¶ D we believe the trial commissioner has reached a de facto reconciliation of the differing medical opinions.5 He has found the exposure standard required under our precedent was not met by employers subsequent to W. J. Barney. We do not believe any benefit would be achieved from a remand when this question was conclusively answered by the trial commissioner in issuing his articulation.6
We affirm the Finding and Award and dismiss this appeal.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT
2 Dr. Daum also opined that all exposure to asbestos was “cumulative and injurious” Claimant’s Exhibit P, pp. 99-100 and that W. J. Barney was not the last place the claimant had an injurious exposure to asbestos. Claimant’s Exhibit P, p. 113. Counsel for CIGA has focused on this point to argue the Finding and Award is inconsistent with the evidence the trial commissioner found credible. We first note that the trial commissioner was under no obligation to credit every opinion of this expert witness in order to find her credible and persuasive. See O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) “[w]e have frequently held a trial commissioner may adopt part of an expert’s testimony while discounting other parts of the same expert’s testimony.” We also note that Dr. Daum’s opinions are not fully congruent with the legal standard for determining liability under Chapter 568 which requires a finding of “significant” or “substantial” exposure. See Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008) and Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002). BACK TO TEXT
3 While we note that 1988 might not fit squarely within the “early 1980’s” or “mid 1980’s” timelines stated by Dr. DeGraff at his deposition and in his report we believe the “totality of the evidence” herein supports the trial commissioner’s conclusion O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999). We find that Dr. DeGraff’s testimony was based primarily on the claimant’s actual activities at work exposing him to asbestos, and not based on the claimant’s age or a precise chronology. BACK TO TEXT
4 This panel followed similar reasoning in Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002) “we rule that § 31-299b allows the last insurer on the risk at the time of substantial exposure in an occupational disease or repetitive trauma case to seek reimbursement from all other solvent insurers or self-insured employers...” Id. BACK TO TEXT
5 See Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006) “There is no need for physicians to uniformly agree on causation to uphold a trial commissioner’s finding regarding a compensable injury.” BACK TO TEXT
6 We uphold the trial commissioner’s denial of the appellant’s Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. State/Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT